Conley v. Chicago

• Decision Date: 05 April 1926
• Docket Number: No. 15632.,15632.
• Citation: 284 S.W. 180
• Court: Missouri Court of Appeals
• Parties: CONLEY v. CHICAGO, R. & P. RY. CO. et al.

284 S.W. 180

CONLEY v. CHICAGO, R. & P. RY. CO. et al.

No. 15632.

Kansas City Court of Appeals. Missouri.

April 5, 1926.

Certiorari Denied May 21, 1926.

Appeal from Circuit Court, Clinton County; Guy B. Park, Judge.

"Not to be officially published."

Action by Abbie E. Conley against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. S. Herndon, of Plattsburg, and John E. Dolman, of St. Joseph, for appellants. Frank L. Pulley, of Cameron, and C. H. Harrison, of Cameron, for respondent.

BLAND, J.

This is an action to recover the statutory penalty for the death of plaintiff's husband, alleged to have been caused by the negligence of the defendants. There was a verdict and judgment in favor of plaintiff in the sum of $2,000, and defendants have appealed.

The facts show that deceased was instantly killed about 6:15 a. m. on August 27, 1923, in the city of Cameron, by being struck by a south-bound passenger train, while walking north upon defendant's railroad track. The train was owned by the defendant railway company and was being operated by it through its servants, who are its codefendants. Deceased was a man 73 years of age, his eyesight was good for a man of his age, but "his hearing was not as good as his eyesight." He was returning home from his work, and when he arrived at the intersection of defendant's, railway track and Sixth street he turned north, walking on and over defendant's track. He proceeded a distance of about 300 feet on said track to the north side of Seventh street when he was struck by the train. The railroad at this point consists of a single track running along and upon Cherry street in said city.

The evidence shows that the track, for three quarters of a mile north of the point where plaintiff came upon it, was straight, with nothing to obstruct the view. There was evidence that the train was running from 35 to 40 miles an hour as it approached Seventh street and that it did not slacken its speed prior to reaching that point. There was an ordinance of the city of Cameron pleaded and introduced in evidence, fixing the limit of the speed of trains running in said city at 6 miles an hour, and requiring the locomotive bell to be rung at a distance of at least 80 rods from the place where any railroad crosses a street or thoroughfare in the city, and that it should be rung continuously while such engine was passing through the city. There was testimony that there was no bell rung or whistle blown prior to the time the train struck deceased. There was no sidewalk between Sixth and Seventh streets on the east side of the track and Cherry street and none on the west side, except for about a half of a block, beginning at Sixth street. The evidence shows that the track where deceased was walking had for a great many years been used by pedestrians. There was a light rain falling that morning and the wind was blowing either from the north or northwest. The witness Dan M. Dwyer testified that the wind was blowing from the north; other witnesses that it was blowing from the northwest.

Mrs. Geyer testified that she was sitting at a table in her house when she saw deceased opposite her door. The house faces Cherry street and is situated about 75 feet north of Sixth street and about 50 or 60 feet from the track. Deceased was going north on the track. He had a raised umbrella in his hand which he was "holding toward the northwest down over his face to keep the rain off." She noticed nothing unusual about him, and stated that his gait was "just his usual walk"; that, "Well, he always walked pretty fast"; that he seemed to be unconcerned. On cross-examination she testified:

"Q. And what little rain there was it was coming from the northwest? A. Yes, sir.

"Q. A misty rain and not heavy? A. Well, it was enough to wet you.

"Q. He was holding his umbrella to the northwest? A. Yes, sir.

"Q. And going directly north in the middle of the track? A. Yes, sir; north.

"Q. In plain view of this train that was coming from the north? A. Yes, sir.

"Q. He could have seen that train easily for a half mile? A. Yes, sir.

"Q. There was nothing to prevent the deceased from seeing this train at any time, was there? A. Well, if he had not had the umbrella there he could have.

"Q. Even with the umbrella holding it up to the northwest, do you say there was nothing to obstruct his view? A. Yes, sir; the umbrella would.

"Q. If it was not jammed down over his face he could see the train plainly? A. Well, perhaps he could and perhaps he could not."

The witness McGinnis testified:

That he was at Seventh and Chestnut streets, a point about 250 to 275 feet east of the railroad track, when he saw deceased crossing Seventh street walking along the railroad track. Deceased was carrying a parasol, "he was just running, and he was just carrying the parasol up over his head, holding it kind of out in front of him. * * * He was walking along north and carrying a parasol kind of like that, holding it down in front of him like. * * * He was pretty well to the north side of the street." He was "just walking along there ordinarily like any old man would, I suppose."

On cross-examination he testified:

That deceased was "holding it (the umbrella) down in front of him; the wind was from the north that morning.

"Q. From the north or northwest? A. I think kind of from the northwest.

"Q. He was holding the umbrella to keep the rain off of him? A. I suppose so.

"Q. Was there anything in his attitude or looks at that time to lead you to believe that he could not see ahead of him? A. There was not at the time; of course, after I heard about the old gentleman being killed, then there was.

"Q. You imagine then he must have had this umbrella down where he could not see or he would not have been hit? A. It was plain to me.

"Q. The way he was holding the umbrella, there was nothing to prevent him from seeing the train? A. I suppose he could have looked out under it.

"Q. The way he was holding the umbrella, there was nothing to prevent him from seeing the train, was there? A. Well, I couldn't say about that."

The defendant Graham, the engineer of the train, testifying for the defendants, stated that when he first saw deceased the latter was down about Sixth street and at that time the train was about four or five blocks north of Eighth street; that deceased was then on the track and walking toward the" train; that the train had been running about 35 miles an hour and had slowed down at a point about two or three blocks north of Eighth street; that when the train crossed Eighth street it was running about 15 miles an hour. Deceased continued to walk toward the train until he reached a point about half way between Sixth and Seventh streets, when he started to run and continued to run to the point where he was struck. That the train consisted of the engine, tender, and 10 cars. The witness further testified:

That he blew the usual station whistle and whistled for the street crossings and that he sounded an emergency whistle just before deceased passed out of his view, which was when the witness was 150 to 160 feet north of Seventh street, " I was getting very close to him; I gave several short blasts of the whistle; I don't know how many; he then went out of my view in front of the engine." Just after the witness passed over Seventh street the witness "asked the fireman if that man got off the track and he immediately looked out, and said, 'No; we struck him.'"

The witness further testified:

That deceased was struck on the north side of Seventh street; that there was nothing in deceased's appearance to indicate that he was not going to get off the track; that "I expected him to step off every minute, every second"; that, as the witness approached deceased, "I could see his face. *

"Q. How was he holding his umbrella? A.

He was holding it up far enough above his head so I could look under and see his eyes." That the rain was coming from the northwest.

The engineer further testified that he made no effort to stop his train until the fireman told him that he had struck deceased, then he applied the service brakes and brought the train to a stop; that he turned on the automatic bell ringer at Trenton and it was ringing continuously until after the collision; that at the time deceased passed out of the witness' view the train was going 10 to...